Du Bray v ACW [2021] FCAFC 103

Du Bray v ACW [2021] FCAFC 103

The appeal was dismissed because the appellant had not complied with the order to provide $50,000 security for the costs of the appeal, had not sought to vary that order, and there was no evidence suggesting that he would or could satisfy it. The undetermined status of the stayed appeal was impeding the administration of the bankrupt estate and affecting related enforcement considerations. Section 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) supplied power to dismiss the appeal for failure to comply with a direction of the Court, and the Chief Justice had directed under s 25(2BB)(a) that the interlocutory application be heard and determined by a Full Court.

Jurisdiction
Australia
Judgment Date
17 June 2021
Procedural Posture
Appeal From Sequestration Order; Interlocutory Application to Dismiss Appeal for Failure to Provide Security for Costs / Full Court Determination on the Papers
Outcome
Appeal dismissed with costs.
Legal Topics
['security for Costs' 'dismissal of Appeal' 'failure to Comply With Court Direction' 'single Judge Appellate Jurisdiction' 'stay of Appeal']
['practice and Procedure' 'bankruptcy and Insolvency' 'appellate Procedure' 'costs'] ['security for Costs' 'dismissal of Appeal' 'failure to Comply With Court Direction' 'single Judge Appellate Jurisdiction' 'stay of Appeal']

Case Brief

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Procedural Posture

Appeal From Sequestration Order; Interlocutory Application to Dismiss Appeal for Failure to Provide Security for Costs / Full Court Determination on the Papers

Legal Issues

  1. 1 ['Whether the appeal should be dismissed because the appellant failed to provide security for costs ordered by the Court.' 'Whether s 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) empowers a single judge, or the Full Court where directed under s 25(2BB), to dismiss an appeal for failure to comply with an order to provide security for costs.']

Ratio Decidendi

The appeal was dismissed because the appellant had not complied with the order to provide $50,000 security for the costs of the appeal, had not sought to vary that order, and there was no evidence suggesting that he would or could satisfy it. The undetermined status of the stayed appeal was impeding the administration of the bankrupt estate and affecting related enforcement considerations. Section 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) supplied power to dismiss the appeal for failure to comply with a direction of the Court, and the Chief Justice had directed under s 25(2BB)(a) that the interlocutory application be heard and determined by a Full Court.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondent's costs of and in connection with the appeal, as agreed or taxed."]